It's not enough for Democrats just to filibuster Neil Gorsuch

The conventional wisdom among center and left pundits at the time of Gorsuch’s nomination a few weeks ago was that the rascally Mitch McConnell had successfully nabbed a SCOTUS seat from President Obama, and that Democrats dare not be uncivil and try and stop him.

Mitch McConnell rubs hands together, snickers with glee at his own cynicism:https://t.co/Wae7JuGTuPpic.twitter.com/NwXNAMVdZv

My how times have changed quickly. Democrats have now announced, perhaps a little tepidly, that they plan to filibuster the nomination of Neil Gorsuch to the Supreme Court.

Democrats plan to filibuster nomination of Judge Neil Gorsuch to Supreme Court https://t.co/ZAPtyVG5nV

Good.

But it’s not enough. Democrats need to declare his appointment illegitimate.

Republicans rendered Gorsuch -or any other nominee- illegitimate. They seek to fill a #StolenSeat. Sins against democracy have consequences.

Stunningly we’re starting to see use of the illegitimacy concept trickle up to mainstream Democratic Senators. But Democrats must be ready to make good on the next step, despite the inevitable bleating of the Beltway tone police.

If Neil Gorsuch is an illegitimate appointment to the supreme Court, then logic dictates that any 5-4 decision with his vote in the majority is by definition illegitimate(1). And if a Supreme Court decision was illegitimate, logic dictates that any such decision need not be respected or followed as Law of the Land.

Will Democrats mount a filibuster, forcing McConnell to invoke the nuclear option to change the rules to permit his appointment with a bare majority, only to resignedly accept a string of conservative decisions? If Democrats mount a filibuster, fail, and then normalize his presence on the bench, they will have negated the point of the filibuster in the first place (which is to declare Gorsuch’s appointment illegitimate), demoralized their base, and turned a principled stand into sore losing. No, Neil Gorsuch must be justice asterisk.

Mitch McConnell broke Democratic norms here. Not the Democrats. Just as it is never mentioned in the Constitution that there need only be 9 Supreme Court Justices, it is one of the unwritten rules on which Democracy lives that the sitting President appoints the justice when a vacancy arises, just as it would be wholly legitimate for Trump to fill any vacancy that arose now. So how should Democrats respond?

Should Democrats advocate appointing a 10th Justice?

Should they advocate what amounts to nullification?

Should they advocate for his impeachment and removal from the office at the earliest convenience?

All of us will need to have the answers to these questions after McConnell invokes the nuclear option, which is going to come sooner rather than later.

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(1) Assuming the split of the other 8 justices would’ve led to a different outcome.